Hughes v. Epps et al

Filing 16

MEMORANDUM OPINION re 15 Order granting Writ of Habeas Corpus. Signed by District Judge Sharion Aycock on 3/27/2013. (psk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
YASMIN HUGHES

PETITIONER

v.

No. 1:09CV284-A-S

CHRISTOPHER EPPS, ET AL.

RESPONDENTS

MEMORANDUM OPINION
This matter comes before the court on the petition of Yasmin Hughes for a writ of habeas
corpus under 28 U.S.C. § 2254. The State has responded to the petition, and Hughes has replied.
The matter is ripe for resolution. For the reasons set forth below, the instant petition for a writ of
habeas corpus will be granted.
Facts and Procedural Posture
On the evening of May 2, 2006 in Louisville, Mississippi, Yasmin Hughes, who was
seventeen years old at the time, accompanied Adrion Webster on a drive around the Louisville
area. Webster was driving. Webster pulled briefly into a driveway of a house with bright lights
and barking dogs, then backed out and drove away. A short time later, he parked 150 to 200
yards away from the home of Jack “Bubba” Warner and his wife, Pat Warner and knocked on
their door. Hughes v. State, 983 So.2d 270, 274 (Miss. 2008). Webster told Jack Warner that his
truck had run out of gas and asked to use the Warners’ phone. Id. Hughes stood silently behind
Webster and did not say anything throughout the encounter. Id. After Webster finished the call,
Jack Warner offered Webster some gas from his carport. Webster refused, stating “they are
bringing us some gas.” Id. After the phone call, Hughes, “who was standing in the back, pulled
a hood over his head,” and started walking away. Id. at 274, 277. In a written statement given
soon after the shooting occurred, Mr. Warner said that Hughes started walking away before the

shooting began. Id. at 277.1 When Jack Warner turned to go back in the house, Webster shot
him three times; he then shot Pat Warner twice. Id. at 274. None of the wounds was fatal.
Hughes then ran back to the truck. When Webster returned to the vehicle, he asked Hughes,
“Why did you run? That was our lick.” Webster then drove Hughes home. Id. at 275. Nothing
was stolen from the Warners.
Several days later, Hughes gave a signed statement that he and Webster had been riding
around in Webster’s car talking about “ways to make money,” ranging from barber school to
robbery. Id. at 275. Then, “[Webster] asked to use my phone and I told him I didn[’t] have it.
[Webster] pulled over and told me to walk up to someone[’s] house with him so he could use the
phone. A man answer[ed] the door and let [Webster] use the phone. When [Webster] gave the
phone back I turned away and started walking toward the truck when I heard gun shots.” Id.
Hughes did not participate in the shootings or try to take anything from the Warners.
Officer Greg Clark testified that there was no evidence that Hughes knew about Webster’s gun.
Id. at 276.
On September 26, 2006, Hughes was indicted on one count of armed robbery and two
counts of aggravated assault – one with respect to Jack Warner and one with respect to Pat
Warner. Id. at 275. Webster was indicted, but pled guilty to two counts of aggravated assault.
The State dropped the armed robbery charge. Id. at 275 n.7. At trial, Hughes was convicted of
all three counts on November 27, 2006. Id. at 274. Though Webster had pled guilty, the State
did not call him as a witness at Hughes’ trial. Hughes was sentenced to thirty years for the

1

However, in his testimony much later at trial, Mr. Warner said that Hughes turned away
at about the same time as the shooting began. This distinction does not affect the outcome of the
current petition.
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armed robbery and two twenty-year sentences for the aggravated assaults, all to run
concurrently. Id. at 275.
Hughes appealed his conviction to the Mississippi Supreme Court, contesting the
sufficiency of the evidence to show that he had the statutorily required intent to commit
aggravated assault or armed robbery. The Court affirmed the convictions, concluding that
Hughes aided and abetted the crimes of armed robbery and aggravated assault. Id. at 274, 277.
Hughes filed a Motion for Rehearing, which the Mississippi Supreme Court denied. A
Petition for Writ of Certiorari before the United States Supreme Court was also denied. Hughes
then filed the present petition for a writ of habeas corpus.
Grounds Reviewed on the Merits in State Court
The Mississippi Supreme Court has already considered Ground One on the merits and
decided those issues against the petitioner; hence, these claims are barred from habeas review by
the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d), unless they
meet one of its two exceptions:
(d) An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim–
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.
Id. (emphasis added). The first exception, subsection (d)(1), applies to questions of law. Morris
v. Cain, 186 F.3d 581 (5th Cir. 2000). The second exception, subsection (d)(2), applies to
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questions of fact. Lockhart v. Johnson, 104 F.3d 54, 57 (5th Cir. 1997). Since the petitioner’s
claims challenge both the application of law and the finding of fact, this court must consider the
exceptions in both subsections.
Under subsection (d)(1), a petitioner’s claim merits habeas review if its prior
adjudication “resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law.” Id. (emphasis added). A state court’s decision
is contrary to federal law if it arrives at a conclusion opposite to that reached by the United
States Supreme Court on a question of law, or if it decides a case differently from the Supreme
Court on a set of “materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 120
S.Ct. 1495, 1523 (2000). A state court’s decision involves an unreasonable application of
federal law if it identifies the correct governing principle but unreasonably (not just incorrectly)
applies that principle to facts of the prisoner’s case; this application of law to facts must be
objectively unreasonable. Id. at 1521. As discussed below, the petitioner has not shown that the
Mississippi Supreme Court unreasonably applied the law to the facts, or that the court’s decision
contradicted federal law. Accordingly, the exception in subsection (d)(1) does not apply to
Ground One of the petitioner’s claim.
Under § 2254(d)(2) this ground also merits review if those facts to which the supreme
court applied the law were determined unreasonably in light of the evidence presented. Because
the supreme court is presumed to have determined the facts reasonably, it is the petitioner’s
burden to prove otherwise, and he must do so with clear and convincing evidence. Miller v.
Johnson, 200 F.3d 274, 281 (5th Cir. 2000); 28 U.S.C. § 2254(e)(1). As discussed below, the
petitioner has met this burden; as such, the court will consider this claim under the exception

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found in subsection (d)(2).
Sufficiency of the Evidence
In order to obtain habeas corpus relief on a claim that the evidence presented was
insufficient to sustain his conviction, Hughes must show that, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact would have found the essential
element of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781 (1979), Harris v. Blackburn, 646 F.2d 904 (5th Cir. 1981). The court must apply the
elements of state criminal law in determining whether the evidence presented was sufficient to
support the conviction. Turner v. McKaskle, 721 F.2d 999 (5th Cir. 1983). The Jackson test
“does not focus on whether the trier of fact made the correct guilt or innocence determination,
but rather whether it made a rational decision to convict or acquit.” Santellan v. Cockrell, 271
F.3d 190 (5th Cir. 2001), quoting Herrera v. Collins, 506 U.S. 390, 402, 113 S.Ct. 853, 861, 122
L.Ed.2d 203 (1993). There is a palpable difference between evidence which gives rise only to
“reasonable speculation” and that establishing proof beyond reasonable doubt. Newman v.
Metrish, 543 F.3d 793 (6th Cir. 2008). Proof beyond reasonable doubt will sustain a conviction;
proof showing only reasonable suspicion will not. Id. To make this decision, the court must
determine whether the jury was rational in concluding (after reviewing the proof presented) that
there was no reasonable doubt as to the defendant’s guilt. “[I]f the evidence viewed in the light
most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory
of guilt and a theory of innocence of the crime charged, then a reasonable jury must necessarily
entertain a reasonable doubt.” Clark v. Procunier, 755 F.2d 394, 396 (5th Cir. 1985)(emphasis
added). That is the standard for judging the reasonableness of the jury’s decision based upon the

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evidence presented at trial. To decide this issue, the court must determine whether the jury’s
interpretation of the evidence presented is reasonable.
Insufficient Evidence to Support Conviction for
Aiding and Abetting Armed Robbery
In Mississippi, armed robbery (as applied to this case) is defined as: “Every person who
shall feloniously . . . attempt to take from the person or from the presence the personal property
of another and against his will by violence to his person . . . by the exhibition of a deadly weapon
. . . shall be guilty of robbery . . . .” MISS. CODE ANN. § 97-3-79. As Hughes did not even speak
with the Warners, move aggressively towards them, fire on them (and considering that he was
unarmed), he could not be charged directly with armed robbery. Instead, he was charged with
aiding and abetting Webster in the crime of armed robbery. Mississippi has adopted as its law
the Fifth Circuit Pattern Jury Instruction on aiding and abetting, which reads:
The guilt of a defendant in a criminal case may be established without proof that
the defendant personally did every act constituting the offense alleged. The law
recognizes that, ordinarily, anything a person can do for himself may also be
accomplished by that person through the direction of another person as his or her
agent, by acting in concert with, or under the direction of, another person or
persons in a joint effort or enterprise.
If another person is acting under the direction of the defendant or if the defendant
joins another person and performs acts with the intent to commit a crime, then the
law holds the defendant responsible for the acts and conduct of such other persons
just as though the defendant had committed the acts or engaged in such conduct.
Before any defendant may be held criminally responsible for the acts of others it
is necessary that the accused deliberately associate himself in some way with the
crime and participate in it with the intent to bring about the crime.
Of course, mere presence at the scene of a crime and knowledge that a crime is
being committed are not sufficient to establish that a defendant either directed or
aided and abetted the crime unless you find beyond a reasonable doubt that the
defendant was a participant and not merely a knowing spectator.

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In other words, you may not find any defendant guilty unless you find beyond a
reasonable doubt that every element of the offense as defined in these instructions
was committed by some person or persons, and that the defendant voluntarily
participated in its commission with the intent to violate the law.
Brassfield v. State, 905 So.2d 754, 757-758 (Miss. App. 2004). Thus, as applied to this case, the
State had to prove that Hughes: (1) voluntarily, (2) participated, (3) in the commission of the
crime (armed robbery), (4) with the intent to violate the law.
To secure a conviction for aiding and abetting armed robbery, the State must prove each
element of the offenses beyond reasonable doubt. There is a complete absence of proof
regarding more than one element of these crimes. As to knowledge of simple robbery, the talk
earlier in the day of potentially robbing someone may establish Hughes’ knowledge that Webster
might do such a thing.
However, there is not one iota of proof in the record that Hughes knew Webster was
armed before Hughes heard shots ring out as he turned away to return to the truck. A
prosecution witness, Officer Greg Clark, even conceded that there was no evidence that Hughes
knew that Webster had a gun. Put simply, in order to voluntarily join Webster in the commission
of armed robbery, Hughes would have to have known that Webster was armed. There is no
proof at all that Hughes had such knowledge. As such, there was insufficient evidence – in this
case no evidence – to prove that Hughes deliberately associated himself with the crime of armed
robbery – an element necessary to sustain Hughes’ conviction for aiding and abetting armed
robbery. In the absence of any proof that Hughes knew Webster was armed, certainly no rational
jury could have found such proof beyond reasonable doubt. Hughes is entitled to habeas corpus
relief on his aiding and abetting armed robbery conviction for this reason alone.
In addition, Hughes took no action in support of the crime of armed robbery. He rode
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around with Webster (who was driving in a car that Hughes did not own) earlier in the evening,
followed Webster to the Warners’ house, stood silent behind him while he spoke with them,
turned to leave when the conversation was over, then ran when he heard the shots. For the State
to convict him for aiding and abetting armed robbery, Hughes must have participated in some
way in the crime, and he did not. The Mississippi Supreme Court recited these facts and
concluded that Hughes participated in the armed robbery; however, none of these acts constitutes
participation in the crime. No proof shows that Hughes encouraged Webster, and Hughes
certainly took no action himself that would meet any element of armed robbery.
Mere presence at the scene of a crime – even with knowledge that a crime will be
committed – is not enough to sustain a conviction for aiding and abetting armed robbery – or any
other crime.
A strikingly clear and accurate statement of the rule is found in that very valuable
work, McClain on Criminal Law, c. 15, § 194, as follows: “Some degree of
participation in the criminal act must be shown in order to establish any criminal
liability. Proof that one has stood by at the commission of a crime without taking
any steps to prevent it does not alone indicate such participation or combination
in the wrong done as to show criminal liability, although he approves of the act.
Even the fact of previous knowledge that a felony was intended will not render
one who has concealed such knowledge and is present at the commission of the
offense a party thereto.” See, also, 9 Am. & Eng. Enc. of Law, p. 575; 2
Thompson, Trials, § 2216.
Harper v. State, 83 Miss. 402, 35 So. 572 (Miss. 1904).
Other Mississippi cases have required more than merely accompanying the principal to
the crime scene to establish participation in the crime. See Williams v. State, 94 So.2d 324
(Miss. App. 2011) (aiding and abetting found when evidence showed that defendant was part of
a love triangle, suspected trouble, stood by knowing the principal was armed, did not stop the
encounter or seek help, traveled to another state with the principal with pre-packed bags, and that
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another witness stated that defendant knew of the plan to kill victim, who was also part of a love
triangle); Stevenson v. State, 738 So.2d 1248 (Miss. App. 1999) (aiding and abetting found when
defendants arrived together in the same vehicle, both left the vehicle at the same time, both were
armed with deadly weapons, defendant stood beside principal and did not run as three shotgun
blasts were fired into a crowd); Bland v. State, 771 So.2d 961 (Miss. App. 2000) (defendant and
principal planned murder and vied for the honor of pulling the trigger, defendant and victim
engaged in a heated argument prior to the killing, and two people shot the victim from the
vehicle in which defendant was traveling). Each of these cases required the defendant to do
more than accompany the principal to the scene, say nothing, then flee when shots were fired.
Indeed, the court can find no Mississippi case holding that merely accompanying a principal to
the crime scene, standing silent, then leaving rises to the level of aiding and abetting, even with
knowledge that a crime may be committed.
On the other hand, when the proof shows only that the defendant was present at the scene
and did nothing to encourage the principal or participate in the crime, he cannot be convicted for
aiding and abetting the principal. Bruce v. State, 138 Miss. 402, 35 So. 572 (1904). In the
absence of a conspiracy to commit the crime charged (in this case armed robbery), mere
presence at the scene and knowledge of the crime are not sufficient to sustain a conviction for
aiding and abetting. Griffin v. State, 293 So.2d 810, (Miss. 1974). In the present case, Hughes
could not have conspired to commit an armed robbery without knowing that Webster was armed,
and there is no proof in the record he had such knowledge.
In sum, the trier of fact could not have rationally concluded beyond reasonable doubt that
Hughes aided and abetted Webster in the crime of armed robbery, and habeas corpus relief will

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be granted as to that conviction.
Insufficient Evidence to Support Conviction for
Aiding and Abetting Aggravated Assault
The same principles discussed above apply to Hughes’ conviction for aggravated assault.
In addition, though proof exists in the record sufficient to prove that Hughes knew Webster
might attempt a simple robbery (not an armed robbery), there is no proof whatsoever that he
knew Webster might assault the Warners with a gun. There is no proof that Hughes even knew
Webster had a gun.
Section 97-3-7(2) of the Mississippi Code sets forth the elements of aggravated assault.
It reads, in pertinent part:
A person is guilty of aggravated assault if he (a) attempts to cause serious bodily
injury to another, or causes such injury purposely, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of human life; or (b)
attempts to cause or purposely or knowingly causes bodily injury to another with
a deadly weapon or other means likely to produce death or serious bodily harm . .
..
MISS. CODE ANN. § 97-3-7-(2).
Aggravated assault is not a lesser included offense of armed robbery, as each requires an
element to be proved that is not an element of the other. Thomas v. State, 930 So.2d 1264 (Miss.
App. 2005). Thus, even if there were proof that Hughes agreed with Webster to commit armed
robbery, the court could not also conclude that Hughes agreed to commit aggravated assault. No
such proof is in the record. Hughes’ said in his written statement that he and Webster discussed,
among other things, that robbing someone could be a way to get some money. His statement did
not mention a discussion of assaulting anyone. As set forth above, there is no evidence of record
that Hughes knew Webster had a gun, no evidence that Hughes knew Webster planned to attack

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the Warners, and, again, no evidence that Hughes performed acts with the intent to commit the
crime of aggravated assault. Neither is there evidence that he voluntarily participated in the
commission of the crime of aggravated assault. To the contrary, Hughes turned away to leave,
then as soon as the assault began, he fled the scene. Webster’s later question, “Why did you
run? That was our lick,” shows that even Webster believed Hughes did not participate in the
attacks.
Thus, as to several elements necessary to prove the two counts of aiding and abetting
Webster in aggravated assault, there was simply no evidence to sustain Hughes’ conviction.
First, he performed no “acts with the intent to commit” an aggravated assault. Brassfield v.
State, 905 So.2d 754, 757-758 (Miss. App. 2004). The State introduced no proof that Hughes
“deliberately associate[d] himself in some way with the crime [of aggravated assault] and
participate[d] in it with the intent to bring about the crime.” Id. There is no proof that he even
knew that Webster planned to attack the Warners. There is no proof that Hughes “voluntarily
participated in [the] commission [of aggravated assault] with the intent to violate the law.” Id.
To the contrary, once he heard the shots ring out, the fled the scene. These are all necessary
elements of the crime of aiding and abetting an aggravated assault, and the State provided
absolutely no proof to support any of them.
Webster discussed with Hughes robbing, hustling, and barbering as various means to
make money. Neither of them mentioned a weapon, and there is no proof that Hughes knew
Webster had a gun. Sometime later that day, Hughes accompanied Webster to the Warners’
home, where Webster tried to trick the Warners then shot at them, injuring them both. The
earlier conversation is sufficient to establish that Hughes knew Webster might commit a simple

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robbery. But his decision not to act (not even to speak), then walk away, then flee when shots
rang out does not establish beyond reasonable doubt that merely walking to the Warners’ house
constitutes an act in support of armed robbery. In this case, “the evidence viewed in the light
most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory
of guilt and a theory of innocence of the crime charged[; as such,] a reasonable jury must
necessarily entertain a reasonable doubt.” Clark v. Procunier, 755 F.2d 394, 396 (5th Cir.
1985)(emphasis added).
Taken in the light most favorable to the prosecution, Hughes’ conversation about
robbing, his walk from the truck to the Warners’ home, his silence the entire time, his turning to
walk away, and his flight once a shot rang out, point far more to his innocence of the crime of
aiding and abetting aggravated assault, than to his guilt. These actions show, at most, his
knowledge that Webster planned a simple robbery. He, at all times, remained an observer; he
did not participate in the robbery. It was not rational for the jury to find beyond reasonable
doubt that Hughes aided and abetted Webster in these crimes.
Conclusion
In order to convict a defendant of a crime, the State must prove each element of the crime
charged beyond reasonable doubt. The standard on habeas corpus review for a claim that the
evidence presented was insufficient to support a conviction is whether, after viewing evidence in
light most favorable to prosecution, any rational trier of fact would have found the essential
element of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781 (1979), Harris v. Blackburn, 646 F.2d 904 (5th Cir. 1981). The court must apply the
elements of state criminal law in determining whether the evidence presented was sufficient to

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support the conviction. Turner v. McKaskle, 721 F.2d 999 (5th Cir. 1983).
For several elements of the crimes charged – aiding and abetting armed robbery and
aiding and abetting aggravated assault – the State presented no proof at all to support them. In
the absence of any evidence of these essential elements, certainly no reasonable trier of fact
could have found that the State provided proof of them beyond reasonable doubt. For this
reason, the adjudication of these claims “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding” under 28 U.S.C. § 2254(d)(2). As such, the evidence in the record regarding the
convictions of Yasmin Hughes for aiding and abetting armed robbery and two counts of aiding
and abetting aggravated assault is insufficient to support the convictions, and his petition for a
writ of habeas corpus is GRANTED. A final judgment consistent with this memorandum
opinion shall issue today.
SO ORDERED, this the 27th day of March, 2013.
/s/ Sharion Aycock
U.S. DISTRICT JUDGE

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